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It's not just the writers anymore: carluva writes "The American Society of Media Photographers (ASMP) and several other visual artist groups are suing Google over its digitization of of millions of books, claiming copyright infringement related to images within the books. The photographers initially wanted to be included in the authors' and publishers' class action suit, but filed their own suit after that request was denied. Google and others assert that images are only included in the digital copies when permission has been obtained from the copyright holder."

This will "develop" with Google gaining supremacy over the entire publishing industry. The intransigence, backwardness, and lack of innovation by publishers have left them essentially at the mercy of a company like Google, which has the mentality of a startup and the resources of a Fortune 500 company. The legions of middle men all looking for their cut--typified by these photographers--are one of the primary reasons media companies have failed to adapt to the internet. Frankly, as much as I dislike Google

You're saying that knowing how to properly use tools in a creative endeavor is not a creative skill. You're pretty wrong. The technical part of a creative process is just as important as the... "inspirational" part.

You're essentially saying that knowing the proper brush to use for a work is irrelevant when discussing the skill level of a novice vs expert painter. On the contrary, it's that sort of skill in selecting your tools that allows the resulting work to look more refined.

Most of us agree already that intellectual property goes too far. When it comes to things like movies and music and books, there is at least some real creativity. Photography? Not so much.

Baloney.

I've had formal training in writing and theatre (acting, design and directing) and have worked professionally in a number of creative disciplines. Just as with photography, the majority of writing work is workman-like documentary stuff that anyone with a decent grasp of the English language can manage. Writing clearly is mostly a matter of discipline. It's work, but it's not that difficult.

Telling stories as simply and elegantly as Graham Greene, however, is something to which most of us can't even aspire.

Likewise with photography. Taking a clear, composed and nicely lit photo is mostly a matter of discipline. It's work, but it's not that difficult. Taking a great photo on the level of Don McCullen or Robert Capa, for example, is something most of us will never approach.

If you're going to compare different artistic media (not really advisable at the best of times), at least try to compare similar things. Run-of-the-mill documentary writing, film-making and photography are similar in terms of time, discipline and effort required. (The biggest differentiator is the scope of the work itself. Photographers capture an instant; film-makers capture events.)

Great work in any discipline is likewise exacting, difficult, time-consuming and reserved to a rare, gifted few.

I've always believed that photographers outright sold their work to authors and/or the publishers. Quite likely that isn't the case with all photographers. Magazines come readily to mind as an exception. Authors who sold works to old pulp fiction magazines often retained the rights to their works, and had those works published again, in other forms, years later.

But, for the most part, I suspect that photos and images contained in old physical tree books were actually bought and paid for, and the photogra

I'm not familiar really with this topic at all. As far as I understand it, Google is digitizing public domain books right? And the copyrighted ones it's digitizing previews of books(like table of contents, random pages, etc.)?

Correct? I'm just trying to get a handle on why everyone is pissed off. Sadly, googling this topic leads to information overload and I just don't have time to read 100 articles about it.

As someone who has done photography as well as drawing, painting, graphic design, and sculpture, I feel I must respond. You have some good points, but are also under some misconceptions.

Photography is NOT hard.

You are correct - photography is not hard. However good photography can be hard for those without natural talent.

I know people can go on and on about skill and knowledge and blah blah blah. It's taking pictures. There's just not as much work involved as there is with ANY other type of "creative work."

I disagree here. For some people, it's harder, for others, it's not. As a creative type person, I find photography more difficult than painting or graphic design. Taking a good photograph involves just as muc

The complexity is that a modern book can have a large number of owners, who may have come together and agreed to publish a given book, or even a given edition of the book. But republication, translation, adaption for the stage, movies, song lyrics, etc., all need to be negotiated separately. It gets even crazier with video, since then you have musician rights, composer rights, etc.

unless you want to profit from slicing and dicing somebody else's work.

sounds like most every job. Photographers/miners/carpenters takes a piece of something nature created, and cuts it up. Musicians take the same instruments and notes compilations of others, programmers build upon what others did... Google pays the artists for any artwork they claim, they just don't want to negotiate with every single photographer, so they set a rate higher than what 99% get currently, and give them the option to take it or leave it.I would prefer google to sell e-books afford-ably and ar

Are you suggesting that I ought not to be allowed to, say, slice and dice Shakespeare's 'Romeo and Juliet,' changing the script and setting as I see fit, adding new elements, and staging a performance for profit? I'm not Shakespeare, after all, and I guarantee you that Shakespeare never gave me permission to do so.

I think this is just becomeing a suing opportunity. Anyone that has anything to do with Google sues them because they have so much money. Hell, Google has been sued for linking to sites not using robots.txt or having thumbnails or images or.... the list goes on.

People are greedy and Google has money. Of course everyone sues it whether or not it is doing no evil.

Why I agree this is probably a huge case of opportunism, The fact remains google are evil bastards in how they are handling this and really they deserve what they get. An system that can take your property and requires you to "opt out" rather than opt in deserves to have as many law suits thrown at it as humanly possible.

There’s no point in acting surprised about it. All the planning charts and demolition orders have been on display at your local planning department in Alpha Centauri for 50 of your Earth years, so you’ve had plenty of time to lodge any formal complaint and it’s far too late to start making a fuss about it now. What do you mean you’ve never been to Alpha Centauri? Oh, for heaven’s sake, mankind, it’s only four light years away, you know. I’m sorry, but if you can’t be bothered to take an interest in local affairs, that’s your own lookout. Energise the demolition beams.

More and more people will start to see that Google is not the savior of the world. It is just a company with shareholders. And whatever it goals are, it will do anything to achieve that goal, including changing the laws in their advantage if needed.

> An system that can take your property and requires you to "opt out" rather than opt in deserves to have as many law suits thrown at it as humanly possible.

Well, I don't believe that IP is property, so I'll have to disagree with you there. There's no way to drag books online (which is where they need to be to be useful) except to do this wholesale, and I'm sorry, but I don't care about the estates of long-dead artists who are out to get another buck or two. Hell, they'd make money if only they signed

As much as I initially hated their methods, I can't say I'm completely against it now, having used it a bit.

It's a small glimpse of what a sane copyright policy might allow. Yes, it's a fucked up walled garden, but even the equivalent of a Disney park ride take on what reasonable copyright policy might look like is exciting. It's possible it's the only time I'll see something like that in my lifetime, if it gets shut down and the idea doesn't spread.

Well, the number one change I'd like to make to copyright is to make it opt in, rather than opt out.

That is, I'd like to undo the recent change to our copyright system that grants copyrights automatically. Instead, we'd return to the old system of only granting copyrights to published works upon request (with some of the new system of limiting the time and protection for unpublished works, to encourage the author to either publish or let it enter the public domain). All that would be necessary for any autho

They aren't quibbling over paying anyone, they are just trying to find a blanket way to offer payment to those who deserve it

No they aren't. They are trying not to pay anyone. They committed large-scale commercial copyright infringement. Then, in response to a lawsuit, they tried to cut a deal. If Google had been held to the same standards as individuals, they would have had to pay $7,500 to $150,000 per book. Those are the statutory penalties in the USA. For the number of books they've made available, the statutory fines could have bankrupted the company.

That comment is so full of bullshit, I'm not even certain where to start.

Wait, I know, lets start at the start:

What did Google actually do originally

Google went to select libraries and asked their permission to scan in the works that the libraries had access to.

Google intended to make the works which were in the public domain available online for free

Google intended to make the works which were still covered under copyright search-able, just as a website is, and include them in Google's index. THIS SHOULD BE COVERED BY FAIR USE

What has Google already made available online

The only items you can currently view in full on Google's site are the books they have PERMISSION to display, either from the copyrights holder or by virtue of the book being in the public domain

Books Google does not have permission to display in full are in some cases search-able (depending on whether the copyright holder has told Google block the book or not

What is evil about what they were originally working on? Where is the blatant disregard for copyright that you are stumping on about? The fact that the GBS greatly expands their plans and what they are doing is not because that is what they were originally planning, it's because that's what the lawyers were able to AGREE upon when they sat down at the table!

No they aren't. They are trying not to pay anyone. They committed large-scale commercial copyright infringement. Then, in response to a lawsuit, they tried to cut a deal.

As a previous manager once had in his.sig: it's often easier to ask forgiveness than permission.

A lot of civil rights have been advanced by "doing" instead of "asking" and then demanding that society respond. Now, this isn't on the same civil-rights level as a black woman sitting at the front of a bus, but it's still civil rights nonetheless. Google may be less altruistic than Ms Parks, but it's still a discussion that needed opening.

What a load of BULLSHIT.
b) it is not just a pointer to data, they are taking books and publications that are covered under copyright and breaching the copyright by illegally making and distributing electronic copies.
c) revenue is irrelevant
d) it is completely different from a library, A library buys there books through means that the publisher/author has explicited provided, If a library was then making its own copies to loan out THEN it would be like a library and THEN the library would also be in breac

I don't see how it is so cut and dried. If these artists have legitimate copyrights and Google is presenting the image in results, it certainly could be argued that is a form of republishing. Whether you agree or not, the issue is not exactly just 'me too.' While there may be an element of that TFA is pretty light on details as to what the plaintiffs are claiming represents unauthorized republishing of their work.

As someone who is still trying his Android Market money from Google, I'd say people sue Google because it's just as evil as other megacorps, especially those two with the half rotten apples or broken chairs

slightly off topic I know. Just got that literally 2mn ago from Google. My question (asked a year ago) was how can I get my money if I'm not in the USA. Emphasis mine.

Hello Sammy,
Thanks for writing in. Apologies for the delayed response. If you wish the
change the locale of your Google Checkout account, you will need to create
a new account.
In order to do this, you would also need to pay to register a new Android
Developer account. After doing so, our team may be able to move your
applications over into that new account that you plan on linking with a
France Checkout account.
If we can assist you further, please let us know.
Regards,
The Android Market Team

I'm a newspaper photographer. I'll offer this perspective on Google's respect for copyright:

Google recently used some of my photographs on Google News, as the 'headline' photos to represent collected coverage of major stories. This fell outside any reasonable definition of fair use. This was for-profit publication of photographs that other publishers were paying for the right to use. Google used them for free.

Now, it's common in the news business that publishers use breaking news photos without permission, because they need to publish them quickly. But they ALWAYS pay afterwards, market rate, without question. This side of the business works on trust.

When I sent Google a bill, their first reaction was exactly what it should be: They would pay the market rate. They rang up to get my banking details for fund transfer, and that should have been the end of the matter.

Then they wrote to me saying that they wouldn't pay. They even denied publishing the images, which was clearly untrue. They told me that to take the matter further I would need to file a DMCA complaint -- and in doing so I must give Google permission to publish the DMCA complaint online. I believe this is outrageous! I only sell my pictures to UK publishers, yet here was a US company publishing my work without permission, and telling me that I would need to pursue them through the US legal system!

This gives me a fairly clear view of Google's attitude to other people's copyright. It seems that Google will take what they want, publish it however they want, profit, and then to hell with the people who originally produced the material in question.

Google likely believes use of your images falls under "fair use" in the same manner as those shown on Google Images, and hence feels no obligation to pay.

I assume the images in question were shown as smallish (ie. 80x80) thumbnails?

You might be able to strongly encourage Google to pay, if you can document them using the images out of context... but I presume the images all linked to the related news items that contained the full size images. And thus, to reiterate, likely why Google feels no obligation to pay.

Which is like having your neighbor say it was OK to use your pool without your permission because they did the same thing to the guy down the street.

No, it's more like if your house is plainly visible from the sidewalk, with no tall hedges, or anything else obstructing the view, and your neighbor stands on the sidewalk and looks at it. The house may be your property, but he is perfectly within his rights to look at it, if you haven't concealed it in some fashion.

Remember: Copyright is defined by statute, and is limited; it does not cover absolutely anything regarding a work. An author's rights in his work stop at the border of fair use (among other things). Fairly using a work simply does not, and cannot infringe, by definition.

Of course, I'm not surprised to see the sort of rent-seeking behavior that you seem to condone. We just have to stand firm against those who would disparage fair use (which, because fair use is meant to promote public policy with regard to copyright, is really a disparagement of copyright as a whole).

Whoosh. The point is that Google (if it used the quoted argument) would be trying to establish a legal precedent for their behavior based on their own similar questionable behavior in the past. Such an argument is both circular and inefficacious.

The problem for your argument is that Google has a strong precedent in their favor that their previous behavior was not only not questionable, but was perfectly legitimate. (In fact, IIRC, Google didn't have Image Search running until after the matter had already been litigated by another search engine) It would not be difficult to build upon this, if indeed, the two cases can be distinguished at all.

Plus, fair uses are never even so much as questionable. The question is merely whether or not the use is fai

The mechanism by which an author is rewarded by money is well understood and doesn't require any speculative assumptions.

The mechanism by which an author is rewarded by "increasing its attraction to the reader" is not at all clear and requires a significant scaffold of assumptions to keep it from collapsing.

I put a huge poster featuring your photo in the window of the gallery where your photos are showing. I do not charge people to view this image and I don't pay you for it. I do charge for the prints displayed inside and I pay you a percentage of the take.

The poster for which you are not paid advertises your work and increases its desirability. It drives traffic into the gallery where your work is showing.

So if I understand you correctly, you want google to pay 'market rate' for an 80x80 portion of a picture that you took with your EOS 5D-II? How small a part of your image does google have to use in order to qualify for "fair use"?

A sufficiently reduced-quality image (or a detail from a larger image) is perfectly analogous to a quotation from a written work. It serves to convey the essence (or a detail) of a particular work without reproducing it in toto. Past a certain point, however, the exercise becomes a case of wholesale copying i.e. no longer Fair Use.

If that weren't the case, then I could sue you for using the same white and black pixels that I used in a graphic this morning, or the same alphabet (or phrases, if you like) that I used to create my last newspaper column.

Actually no, they do it because they either have a marketing agreement with opposing vendors who didn't want free advertising to be given to the competition or because the image was TRADEMARKED and they were worried the use of it in their show might bring legal trouble on that front.

Unless they have an incompetent legal department, they are never doing it because they fear they are infringing copyrights, as it'd be a 100% slam dunk when they showed up for court and said "Your honor, fair use."

It could be that your case was exceptional, but from what I've seen Google News only shows tiny thumbnails of images that are published on the newspaper's website. If you click on the thumbnail to view the image, it takes you to the source - a site of the publisher has decided to use this particular photo.

I don't see a difference between that and showing the excerpt of the article's text under each heading, or analogously the excerpt of the webpage cache in the normal search results.

Now that you mention it, I think I've had this conversation before. It turned out the reason was because DA used to (still?) would do "artwork of the week" or whatever from people's galleries and so would use them in intra-site events.

And indeed, that argument was made in Kelly v. Arriba Soft, back in 2002. The court in that case decided that image thumbnails produced as search results were a fair use.

The use was commercial, which counted against defendants, but transformative (instead of being pictures qua pictures, they were merely search result) which counted for. The pictures were creative works, but published, which counted against, but not so much against as it might. They copied the entire work, but this was no more than necessary for users to be able to identify the results, so it counted neither for nor against. And the use as thumbnails in search engine results didn't harm the market for the images themselves, so that counted for.

I doubt that Google's staff deliberately chooses items to put on their page. Probably they have several search queries for the most recent, most important news, and people automatically get that when they go to the front page. Compare with a newspaper, which will often only change their page once a day, unless something astonishingly important happens.

It's probably like if Google's main page automatically displayed the most recent, most commonly searched for results to save people the time of having to thin

Google recently used some of my photographs on Google News, as the 'headline' photos to represent collected coverage of major stories.

You mean. Google recently used some photographs of yours on Google News, as the 'thumbnail' image to represent the collected coverage of major stories, linking back to the original online newspaper which originally published your photograph.

This fell outside any reasonable definition of fair use.

Who says? You do, but you're a little biased. Aren't you.

This was for-profit publication of photographs that other publishers were paying for the right to use. Google used them for free.

Yes, Google links thumbnails and summary information to online sources. It does the same thing on its search engine, which is also a for-profit operation. And it does this with the robots.txt (or sitemap.xml) permission of the original newspaper that published your photographs. If the original newspaper had just listed the folder in which your photograph was in, and told the googlebot not to index your photograph, then google wouldn't have used your photograph (to make a thumbnail out of it).

It seems your original beef is with the newspapers that published your photographs, not google. I think many would argue that indexing, linking to, publishing the summary information, and automatically making thumbnails, all because the original web site permits you through the robots.txt file, falls well within the purpose of 'fair use'.

You do know that Google News is a totally automated service, right? "Google" didn't use the photo, they're not trying to steal from you. Fair use is not publishing. Moreover, tiny images are fair use, Wikipedia does it all the time. Why does it fail to surprise me that a person in the media is ignorant and doesn't check his facts?

"and in doing so I must give Google permission to publish the DMCA complaint online"of course. You sent someone a notice, they have every write to put it online. IF you sent one to me, I would put it online as well.

OTOH, you post makes for a nice made up story. All nice and tidy.

I wonder why an alleged photographer from the UK would pretend to know what fair use is in the US, or why they think everyone viewing the photo would owe them money.

I agree with pretty much everything you've said...except this one point:

here was a US company publishing my work without permission, and telling me that I would need to pursue them through the US legal system!

Of _course_ you would need to pursue it in the US legal system! I mean, you could perhaps get it removed from google.co.uk results with a UK court order, but that's it. They're a US company, publishing from the US. UK courts do not have jurisdiction over things that occur on US soil. You might as well complain that the UK isn't enforcing their labor laws in Chinese factories...

What's wrong with scanning the books? Sure, if they later publish without permission the scans or OCRs of the scans or whatever, that's worth getting worked up about. But suing over simple scanning? I don't understand.

What's so wrong with just scanning them? Doesn't the internet archive do basically the same thing? I highly doubt they pay anyone for the privilege -- instead relying on fair use.

The process of scanning the books isn't the problem. The issue is that Google did so without getting permission from many authors of the books. Digitizing someone else's copyrighted work without their permission has never been allowed under any exemption to copyright infringement.

I'm pretty sure that ripping MP3s for personal use from any source, even analog sources has been legal. If I take a book and scan/OCR it for personal use I'm pretty sure that's OK too. They'd be hard pressed to sue me for showing someone a clip of that scan or someone else hearing my MP3. Now if I start giving out copies of that book or music then I am in violation of copy-write.

but, IANAL, This is my understanding and how I live. I have mp3 rips of all my CDs and I have many OCR scans of books I have b

I'm pretty sure that ripping MP3s for personal use from any source, even analog sources has been legal

That's actually very variable. In the UK, for example, it's technically illegal (but, to my knowledge, has never been tested in court), while in the USA it's probably legal but state copyright law may not permit it (copyright law in the USA is really fun - take a look at how moral rights vary between New York and California some time, then contrast either to any other state selected at random).

There is, however, a massive difference between ripping your CD collection to MP3s for private use and ripping

Walk into a library, scan all the books, store it on your hard drive.Walk into a video rental store, feed all the disks into your DVD drive and store it on your hard drive.

They're making copies and don't want to pay the copyright holder.

Wrong analogy is wrong, unless there's any evidence they haven't bought the books. If you buy a CD, for example, you can make private copies [cornell.edu]. Why should it be different with books? According to a Professor of Law, it probably isn't [ssrn.com], although deciding it is obviously a court

"Google does not make available any of the visual material that might be in the books, unless the copyright holder has agreed to it", claims Google. Photographers do deserve to be compensated if their copyrighted material has been published online, but Google claims they have never done that without permission. If Google is omitting the pictures (which makes sense because they are not searchable), then they are doing the photographers a favor by publicizing their work online. If they are publishing the artw

Google presumably owns a copy of each book it scans. Scanning it is fair use. Publishing it is unauthorized distribution of copyrighted material. Also, what you are proposing would greatly the cost of scanning books... what if there is text and a picture on the same page? Better to create a digital image of the entire book and keep it secure, so that better OCR techniques can be used on it in the future.

Copying several pages of the book for educational use is considered fair use. Copying the entire book is not. I intentionally used the word "secure" to imply they keep a copy, but not make it generally available, except to the few Google employees actively involved in OCR. I believe that still qualifies as fair use, but it is admittedly a gray area.

I assume that you are an individual and not a corporation of thousands of employees. It's meaningless for a corporation like Google to claim it made a "private" copy. At best it merely limited distribution to the employees of the company.

Most photographic work is licensed in a rights managed fashion. The payment calculated for the image is based on usage and distribution. What Google is attempting to do, is no different than a publisher initiating a second print run, sometime generating income for them, without compensating the photographer a second run. In most walks of life, we call that stealing.

Time to return to old values that worked till they got changed. Let the originator hold rights to the invention or work for a short time (4 years) and if they can't make a profit from it in that time, tough shit! The world marches on. If they are talented they will make more. If not it was a fluke and who cares! This copy and patent crap is taking up too much time and waaaay too much progress.
Senator Bono blowing Mickey f**kin' rat is a perfect example of the crooked kind of crap that got the U.S. in the mess it's in now. Thank God for trees and skis. Now if we could get the rest of the crooked bastards on a tough slope drunk and blindfolded.

No, the problem is that Google thinks it can just violate the copyrights of people who have contributed to the books they scanned. And even more ridiculous is they think they can set up an opt-out system in order to negate these copyrights.

Imagine the uproar if a GPLed program had its codebase relicensed and did so without the consent of all the copyright holders. Then after getting in trouble, they still continued with the relicensing effort and the only way you could assert your rights was through their